Page:Federal Reporter, 1st Series, Volume 8.djvu/690

 676 FEDBBAL EBPOBTBB. �of the law of the state as applicable to that case, or until there is an appearance there for him by some representative authorized by the state law to appear for him without process, �It is insisted by the learned counsel for the petitioner here that McKenna, having since he filed the petition become the regular guardian, may ratify what he bas done as next friend, and tbua per- fect the removal. Potential as the principle of ratification some- times is, I do not think it can be safely applied. to supply a want of compliance with those conditions prescribed by the statutory or mu- nicipal law as a prerequisite for obtaining jurisdiction over the per- son or property of an infant. If the infant oould herself ratify, it might be different. No case cited justifies the argument in favor of the doctrine. McKenna was not a guardian, either regular or ad litem, at the time of filing this petition; no process had been served or sub- stituted by publication ; and the state court had obtained no jurisdic- tion over the infant when he came, in and as next friend sought to remove the caSe in her behalf. The merely filing the bill and nam- ing her as defendant did not make her a party. She had no power to voluntarily appear and waive process, and no one was authorized to appear for her. Subsequently he did obtain the necessary author- ity by bis appointment as guardian in a case like this, under the state statutes, to appear voluntarily, for it is a case, I think, where service of process on the guardian alone binds the infant; and where that is the case I do not see why he may not voluntarily so appear without process. But these statutes only operate in the state court, and can confer no power to voluntarily appear in a federal court where the notion of a voluntary appearance by a guardian or any one else to bind an infant is wholly unknown. The only theory on which it could be permitted is that we are here, pro hac vice, in these re- moval causes, a state court, with the same powers under these state statutes that those courts possess. I think this is not the theory of the act of congress, but the one I have indicated, which is that the defendant comes from the state court only after he is properly there by an appearance in that court. Besides this, in a former part of this opinion we have seen how strictly we are bound to the conditions of the removal act in order to acquire jurisdiction; and it seems to me plain that the petitioner cannot depend on a subsequentlyracquired authority to aid the petition for removal. �It is further insisted that this is a case arising under the constitu- tion and laws of the United States and that we have jurisdiction here irrespective of QItizenship, and for that reason this case should not ��� �